CITATION: R. v. Beauchamp, 2024 ONSC 4909

COURT FILE NO.: CR-24-110 DATE: 2024/09-05

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING Applicant – and – DAVID BEAUCHAMP Respondent

Counsel: M. Mazurski, for the Crown L. Galway, for the Respondent

HEARD: August 26, 2024

CORRECTED REASONS FOR DECISION ON DETENTION REVIEW Corrections are listed on page 8 Wilcox, J.

INTRODUCTION

[1] The accused applied for a detention review which was held on August 26, 2024. I ordered that the accused be released for reasons to follow. These are those reasons:

BACKGROUND

[2] The accused was arrested on December 29, 2022 on a charge of assault with a weapon on December 25, 2022, and charges relating to December 29 of:

• Take Motor Vehicle without Consent
• Fail to Stop after Accident x 2
• Break and Enter
• Dangerous Operation
• Flight from Peace Officer
• Possession of a Schedule I Substance
• Fail to Comply with Probation Order

[3] He was released on a Release Order dated August 9, 2023 to live in a CMHA recovery home. When he was discharged from it, he returned to custody briefly until released on a Release Order dated September 18, 2023. A third Information regarding charges relating to the circumstances of his discharge from the home is listed on that release order, but was subsequently withdrawn by the Crown.

[4] The accused was arrested again on a fourth set of charges on April 25, 2024 and held for bail. He has not had a bail hearing.

[5] When he qualified for a detention review, the defence arranged for it to be held as a bail hearing in the SCJ.

[6] Underlying these matters are the accused’s mental health and substance abuse issues. The defence indicated that she began representing the accused when he faced charges that resulted in Mathias J. in the OCJ sentencing him to time served plus two years probation in March, 2022. She described him as mentally ill then and when arrested on December 29, 2022, with reference to this appearing in the police documents. As previously noted, at the time of the release order of August, 2023, the accused was living in the North Bay Recovery Home, on a 90-day program. There were other references to his mental health issues, especially by his mother, during the hearing.

[7] The proposed terms of his bail would be as follows:

a. Charles Beauchamp and Kelly Anne Smith as sureties in an amount as ordered by the Court. b. That David reside with Charles at either 372 Grey Crescent, Fort McMurray, Alberta or at his camp located at Aurora Borealis and Birch Mountain Outfitter. c. That David be subject to house arrest and not to be off the property of Aurora Borealis/Birch Mountain Outfitter or 372 Grey Crescent, Fort McMurray, Alberta unless in the direct company of either surety unless when travelling by air between Ontario and Alberta for the purpose of court and to be met at the airport by a surety. d. That David not have any contact or communications at all with any of the complainants in this matter and that he remain 100 meters away from any of them unless for the purpose of court. e. That David not possess any weapons unless they can be classified as tools for the purpose of work while at Charles’ camp and not to possess any firearms or imitations thereof or ammunition. f. That David not possess or consume any alcohol or illicit substances. g. That David attend court in person when required to do so.

[8] To elaborate, the proposed release plan was for the accused to live with his uncle, Charles Beauchamp, at the latter’s camp in northern Alberta. Both the accused’s mother, Kelly Ann Smith, and his uncle Charles would be sureties. Ms. Smith would accompany the accused to security at Pearson International Airport. He would fly to Alberta where Mr. Beauchamp would meet him at the airport. He would live under house arrest at Mr. Beauchamp’s residence at 372 Grey Crescent in Fort McMurray, Alberta or at his Aurora Borealis/Birch Mountain Outfitters camp. The camp is a two-hour drive plus a 20-minute quad ride into a remote area. There, Mr. Beauchamp would have the accused working on various projects outdoors. They would come out to Fort McMurray only to get supplies and to access mental health and substance use services for the accused. The only others at the camp would be the accused’s father and Mr. Beauchamp’s brother, Adrian Beauchamp, and one other individual, “Charlie”. There would be no drugs or alcohol. Such weapons as are at the camp for protection from wildlife would be locked away. Mr. Beauchamp would look into mental health services and AA/NA. In addition, he had been looking into the family’s aboriginal roots in the Fort McMurray area and said that there was a treatment centre in that area with an Indigenous perspective. The camp has telephone, internet and Zoom capacity which would be used for treatment or court programs. The accused could be returned to Ontario for in-person court purposes, if required. Charles Beauchamp was familiar with his nephew, the accused, at least in part from a time in the past when they both worked together as iron workers.

[9] The Crown sought an order under section 524 cancelling the release order of September 18, 2023. In the circumstances, I make that order.

[10] The Crown submitted and the defence conceded that it is a reverse onus situation, such that the presumption is detention, and the onus is on the accused to show why he should be released.

[11] The Crown opposed the accused’s release on the secondary and tertiary grounds, relying on the following factors:

• The Applicant has a recent and related criminal record, including 5 convictions for failing to comply with court orders;
• The Applicant is alleged to have committed further offences while on a release order with a similar plan, and while on probation;
• The Applicant suffers from substance abuse issues and has previously been released on a plan to address said issues;
• There is a heightened risk to the complainants, as they are unknown persons to the Applicant;
• This is a strong Crown case;
• The allegations are of a serious nature;
• The Crown is seeking a lengthy period of custody upon conviction.

LAW

[12] The Supreme Court of Canada set out in R. v. Myers, the correct approach to detention review hearings under s. 525 of the Criminal Code. The court indicated, among other things, that:

a. The purpose of the s.525 hearing is to prevent accused persons from languishing in pre-trial custody and to ensure a prompt trial (paras. 24 and 41); b. pre-trial release of accused persons is the rule and detention is the exception (para. 25); c. release is favoured at the earliest reasonable opportunity and on the least onerous grounds; (paras. 1 and 25) d. the judge must consider whether the continued detention of the accused is justified (para. 32) e. unreasonable delay in getting to trial is not a threshold requirement for reviewing detention. It and the impact of the passage of time generally may be taken into account in deciding whether or not an accused should be released from custody on a detention review (paras. 29-33); f. a detention review need not be a protracted or formal proceeding (para. 55); g. the overarching question is whether the continued detention of the accused in custody is justified within the meaning of s. 515(10) (paras. 45-46); h. whereas the purpose of the proceedings under s. 520 and 521 is to review prior orders, a proceeding under s. 525 is a review of the detention itself (para. 47); Nevertheless, previous bail decisions will be relevant and will likely inform the proceedings (para.55). The rational for the original detention order may also be scrutinized as in a bail review. (para. 55) i. at the review hearing, s. 518 applies with respect to the evidence. In particular: i. the prosecution may show the circumstances of the alleged offences; ii. the judge: 1. has discretion to make inquiries on oath or otherwise; 2. may receive and base the decision on evidence considered credible or trustworthy; and 3. may rely on the transcript, exhibits and reasons from any initial judicial release hearing and from any subsequent review. iii. Both parties may make submissions j. The judge must be particularly attentive to any new evidence or material change in the circumstances of the accused and to its impact on the question whether continued detention in custody is justified. Examples of such include: i) a suitable surety; ii) a comprehensive release plan; or iii) other steps that would negate the initial basis for detention. k. Consideration is to be given to the impact of the passage of time and the appropriateness or the proportionality of the detention compared to the sentence that realistically would be imposed after a conviction (paras. 50-51); l. Whether either party has been responsible for any unreasonable delay in getting to trial is relevant to whether continued detention is proportionate or appropriate (para. 54);

[13] The Myers decision addresses situations such as the present one in which the accused at the detention review has not yet had a bail hearing stating, at paragraph 56, that, “to give proper effect to s.525 in such situations, the judge is required to conduct the full bail hearing “from the ground up” in accordance with the ladder principle articulated in Antic, taking into account the time the accused has already spent in pre-trial custody”. This has practical and procedural problems such that, as pointed out by the Crown during the hearing, local practice has been to refer such matters for bail hearings in front of a Justice of the Peace. It is not clear why this practice was not followed in this case. Therefore, in fairness to the accused whose liberty was at stake, the matter was allowed to proceed in the SCJ as scheduled.

[14] The Canadian Charter of Rights and Freedom provides that any person charged with an offence has the right not to be denied reasonable bail without just cause.

[15] The principle of restraint is found at section 493.1 of the Criminal Code. It requires that, in making a decision about bail, the court shall give primary consideration to the release of the accused at the earliest reasonable opportunity and on the least onerous conditions that are appropriate in the circumstances, including conditions that are reasonably practicable for the accused to comply with, while taking into account the grounds referred to in section 515(10).

[16] As an aside, the presumption of innocence is often raised as a consideration in deciding whether to grant bail. As this presumption applies to all who are accused of crimes, it does not assist in deciding which accused should be released on bail. Rather, it underpins our laws that a person charged with an offence is not to be denied reasonable bail without just cause R. v. Antic “(T)he expression “just cause” is … used to describe the statutory grounds that justify the pretrial detention of an accused. These grounds, which are enumerated in section 515(10) of the Criminal Code, are flight risk, public safety, and public confidence in the administration of justice.” R. v. Antic These are the primary, secondary and tertiary grounds.

[17] Detention on the primary ground is justified only if it is necessary to ensure the accused’s attendance in court.

[18] Detention on the secondary ground is only justified where:

a. there is a substantial likelihood that the accused, if released, will commit a criminal offence or interfere with the administration of justice; b. that substantial likelihood endangers the protection or safety of the public; and c. detention is necessary for public safety.

[19] The Supreme Court of Canada provided guidance in the application of the tertiary ground in R. v. St-Cloud. Detention on the tertiary ground is only justified where it is necessary to maintain confidence in the administration of justice, having regard to all circumstances, including:

a. the apparent strength of the prosecution’s case, considering the quality of the prosecution’s evidence and any defence raised by the accused. b. the gravity of the offence, in comparison with other offences, assessed objectively on the basis of the maximum and any minimum sentence provided for the offence; c. the circumstances surrounding the commission of the offence, including whether a firearm was used. Of possible relevance are that the offence is violent, heinous or hateful one, that it involved domestic violence, a criminal gang or a terrorist organization, or that the victim was a vulnerable person. d. the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment, or, in the case of an offence that involves, or whose subject matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more. This is to be assessed subjectively, taking into account the circumstances of the case and sentencing principles.

[20] These four circumstances are not exhaustive. The court must consider all the circumstances of a case, paying particular attention to these four. No one circumstance is determinative. The court must balance them to determine whether detention is necessary to maintain public confidence in the administration of justice. This balancing must be guided by the perspective of the “public” as defined in R. v. St. Cloud. In summary, the perspective of the “public” is that of a reasonable and thoughtful person who is familiar with Charter values, basic legal principles and the actual circumstances of the case, but is not a legal expert and is not able to appreciate the subtleties of the case. The reasonable person’s confidence in the administration of justice may be undermined not only if the court declines to order detention where detention is justified having regard to the circumstances of the case, but also if it orders detention where detention is not justified.

[21] The above-mentioned “ladder principle”, discussed in R. v. Antic and contained in the Criminal Code, requires that more onerous conditions of release may not be imposed unless the Crown shows why less onerous conditions would be inadequate. It is generally, although not universally, said not to apply to reverse onus situations.

CONCLUSION

[22] I am satisfied that the plan meets the accused’s onus on the secondary ground. The accused was released on the release order of August 9, 2023 on the bulk of the charges that he now faces and succeeded until April 25, 2024, despite the relatively unrestrictive terms. The proposed plan is substantially more restrictive, leaving little opportunity to offend.

[23] I am also satisfied that the plan meets the accused’s onus on the tertiary ground. But for the April, 2024 charges, the accused would still be on bail. The defence submitted that the previous charges were close to resolution until then, but that there are triable issues with respect to the April charges. Although the circumstances of the April charges are objectively frightening, there were no allegations that the accused spoke or gestured, was violent, or was on drugs. Also, the accused had a legitimate reason to be in the area, as he lived in the vicinity and visited his child who also lived around there. Counsel differed on whether these charges would attract a lengthy sentence but, the defence submitted, the accused has served the equivalent of 616 days on the outstanding charges up to hearing date. Given his mental health issues, if he continues to make efforts to address those, further pre-trial custody risks making the time in detention out of proportion to a realistic sentence. This is particularly so given the typical delays in getting cases to trial.

[24] Therefore, the accused was released on the terms of the proposed plan.

Wilcox, J. Released: September 5, 2024

CORRECTED DECISION: The text of the original decision was corrected on February 7, 2025, and the description of the correction is appended below:

• The paragraph numbers were corrected commencing on page four.

CITATION : R. v. Beauchamp, 2024 ONSC 4909 COURT FILE NO.: CR-24-110 DATE: 2024/09-05 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: HIS MAJESTY THE KING Applicant – and – DAVID BEAUCHAMP Respondent REASONS FOR DECISION ON DETENTION REVIEW Wilcox, J. Released : September 5, 2024